1986 PLP (Trib (PTD)

Muhammad Khalid for Applicant. Javed Tahir Butt, AC/DR for Respondent. Date of hearing: 24th September, 1985. By this application the assessee‑applicant has raised an important question of law of general importance namely, whether the Tribunal seizen of an appeal under section 134 (1) of the Income‑tax Ordinance, 1979 (hereinafter called the Ordinance) has in the absence of an express pro vision in that behalf in the Ordinance, jurisdiction to stay the implementa tion of the order appealed against during the year pendency of the appeal.

2. The relevant facts of the case are that for the charge year 1982‑83 the applicant for the first time tiled return under self‑assessment scheme declaring share from property income at Rs. 15,

994. The I. T. O. selected the applicant's case for detailed scrutiny and issued notice under section 62 of the Ordinance seeking documentary evidence regarding purchase deed of the plot over which the property was constructed; copy of approved site plan; covered, area of the property; cost of construction; source of investment; completion certificate of the building and rent deed. The applicant provided, the called for information and thereafter the I.‑T. O. on 30‑1‑1983 made an agreed assessment at an income of Rs 25,

000. On 7‑5‑1985 the learned I. A. C. passed the following order on the order sheet:‑‑ "Order passed under section 62 of the Ordinance for the assessment year 1982‑83 is erroneous in so far as it is prejudicial to the interest of revenue. Issue notice under section 66‑A of the Income Tax Ordinance, 1979 for 16‑5‑1985." That notice was served on the applicant on 11‑5‑1985. The learned I. A. C. while passing order under section 66‑A of the Ordinance on 2‑6‑1985 cancelled the assessment made by the I.‑T. O. in agreement with the applicant and directed de novo decision with certain directions. The applicant bas challenged that order and his appeal is pending before the Tribunal. By this application the applicant has requested that execution of the impugned order be stayed and I.‑T. O. be refrained from initiating assessment proceedings in the case till final decision of his appeal.

3. The learned Authorised Representative of the applicant at the outset pointed out that tax due in pursuance to the assessment made by the I.‑T. O. has already been deposited and as such provision of section 134 (6) of the Ordinance is not attracted. An order is sought for stay of the proceedings yet to be started by the I.‑T. O. in pursuance to the order passed by the learned I. A. C. because of pendency of appeal against that order. The learned Departmental Representative raised a preliminary objection regarding maintainability of this application His case was that tax as determined by the I.‑T. O. having already been deposited by the applicant, no order under any provision of the Ordinance can be passed in restraining the I:‑T. O. in initiating the reassessment proceedings.

4. Before decision of this application, I feel no hesitation in holding that the applicant's request seeking stay of reassessment proceedings till decision of his appeal by the Tribunal is not covered by provisions of sub‑clause (6) of section 134 of the Ordinance as that provision is only regarding stay of recovery of tax. Despite that the Tribunal has the Juris diction to papa an interim order restraining the I.‑T. O. from proceeding in the matter of reassessment till decision of the applicant's appeal. The basic reason for this conclusion is that when the Tribunal is seized of the matter of the applicant's appeal and it has the authority under section 134 (1) of the Ordinance to hear and decide that appeal against the order passed by the learned I. A. C. under section 66‑A of the Ordinance, it has the power to grant an interim relief as well. For the purposes of grant of interim order no separate or specific provision is necessary for empower ing the Tribunal in that behalf as the Court empowered to finally decide an appeal is entitled under law to grant interim relief unless such power is excluded expressly or by necessary implication. I am fortified in this view by a judgment in the case of M. A. Khakwani v. Mst. Shaheen and others (1981 C L C 1545) wherein it was held:‑‑ "According to law, making of an interim order is part of working of judicial system and for that purpose no separate or specific pro vision is necessary to empower a Court to issue an interim order. Even in the absence of any such specific provision, a Court has power to grant an interim relief to appropriate cases as the same is ancillary and incidental to the power to grant final relief'. Where a Court has power to pass an order finally it will generally have the power to grant interim relief unless such power is either expressly or by necessary implication excluded." Power to grant interim relief is exerciseable by the Tribunal not under its inherent jurisdiction but only to enable it to exercise its appellate jurisdiction under section 134 (1) of the Ordinance expressly conferred upon it more effectively and in accordance with the requirements of justice and reason. Looking the case from another angle of interpretation of statute i.e. construction by implication the 'established principle of law is that where a superior authority is exercising its jurisdiction and is seized of the case, jurisdiction of a subordinate authority in that case is barred in the absence of any express provision in the statute to the contrary. In somewhat similar circumstances, this issue was decided by Supreme Court of India in the case reported as 1981 S C C (Tax) 253 holding:‑ "Now it seems to us past question that when the appellate jurisdiction of superior authority is invoked against an order and that authority is seized of the case, it is inconceivable for a subordinate authority to claim to exercise jurisdiction to revise that very order. The Tribunal is the supreme appellate and revisional authority under the statute. It cannot be divested of its jurisdiction to decide on the correctness of an order, it cannot be frustrated in the exercise of that jurisdiction, merely because a subordinate authority, has also been vested with jurisdiction over that order. Unless the statute plainly provides to the contrary, that appears to us to be incontrovertible." Provision regarding appellate jurisdiction of the Tribunal as provided under section 134 (f) of the Ordinance being a general provision is not qualified by any limitation. In Colonial Sugar Refining Co. v. Irving (1905 A C 369), it was observed that a right of appeal where it exists, is a matter of substance and not mere procedure. Under the monograph "Implied Powers and Obligation" page 350, Maxwell, 1962 Edn., the following state ment appears:‑‑ "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution." Bearing these principles in mind. I have, therefore, come to the conclusion that it is open to the Tribunal under the scope and ambit of the appellate jurisdiction under section 134 (1) of the Ordinance, to grant an interim order suspending the operation of the order under appeal. In this view of the matter an interim order is passed restraining the implementation of the order of the learned I. A. C. dated 2‑6‑1985 till the final decision of the applicant's appeal. In the appeal only legal issue concerning the powers of the learned I. A. C. to reopen an agreed assess ment is involved, it is, therefore, directed that the applicant's appeal be fixed for hearing out of turn in the next month. The miscellaneous application succeeds accordingly. M. Y. H Stay granted.